“Customer Interface” means where we have indicated that the Service(s) can be self-administered, the web-based interface by which Customer and Authorised Users may access the Service(s).

“Intellectual Property Rights” means patents, copyright, moral rights, trademarks and service marks, goodwill, trade secrets, design rights, rights in computer software, database rights, know-how and any other intellectual property rights, registered or unregistered, and all similar rights in any part of the World.

“Services” means any of the service WorkInConfidence owns and operates including WorkInConfidence.com, SpeakInConfidence, PulseInConfidence, ReferenceInConfidence, TwoWayVision and 360now which you have agreed to use and we have agreed to provide to you and “Service” means the relevant one(s) of them.

“Software” means the software application(s) used by WorkInConfidence to provide the Service(s) and any enhancements thereto.

“WorkInConfidence Technology” means the Software and any know-how, processes, designs, inventions, user documentation, products or other technology or any enhancement thereto, used by WorkInConfidence in connection with the Service(s).

2. The Service(s)

2.1 WorkInConfidence will provide the Service(s) to Customer and Authorised Users during the Term. WorkInConfidence may delegate the performance of certain portions of the Service to third parties, provided WorkInConfidence remains primarily responsible to Customer for the Service(s).

2.2 WorkInConfidence will host, or have hosted for it, and maintain the Customer Interface, and provide the Customer and Authorised Users access to the Customer Interface via password protected Authorised User accounts. WorkInConfidence may in its discretion modify the Service(s) without adversely affecting them.

2.3 For Customers in the EEA, the Service(s) will be hosted in the EEA, for other Customers we may host as we see appropriate, provided that this complies with the Law.

3. Licence

3.1 WorkInConfidence grants the Customer a non-exclusive, revocable licence during the Term to use the Service(s), and to allow Authorised Users to use the Service(s), in accordance the Individual Terms of Use.

3.2 WorkInConfidence has implemented appropriate technical and organisational measures to prevent unauthorised or unlawful processing of, and against accidental loss or destruction of, or damage to, all personal information and User Input.

3.3 WORKINCONFIDENCE WILL TAKE ALL REASONABLE AND PROPER STEPS TO ENSURE CONFIDENTIALITY OF USER INPUT.

4. Restrictions on Use of Service(s)

4.1 Customer agrees not to:

use any automated system to access the Service(s) or collect any personally identifiable information from the Service(s) nor use the Service(s) for any commercial solicitation purposes.

attempt to compromise the Service(s) integrity.

take any action that imposes an unreasonable load on our system.

upload invalid data or viruses.

impersonate another person or misrepresent your relationship with a person or entity.

interfere with working of the Service(s).

use any information about the Service(s) with a view to copying the Service(s) or developing a competing service.

modify or create any derivative work based upon the Service(s);

grant any sublicence or other rights to the Service(s).

reverse engineer or disassemble all or any portion of any Software.

4.2 The Customer shall comply with, and use all reasonable endeavours to ensure all Authorised Users comply with, the Individual Terms of Use.

4.3 Customer agrees to take reasonable steps to ensure that Authorised Users do not post User Input that: (i) may create a risk of harm, physical injury or emotional distress (ii) may constitute a crime or tort; (iII) contains content that is unlawful, abusive, racially or ethnically offensive, defamatory, harassing, libellous, threatening, or otherwise objectionable.

4.4 WorkInConfidence is not responsible for any public display or misuse of User Input, except in the case of gross negligence or intentional misconduct by WorkInConfidence. Unless agreed otherwise, we may use information to provide aggregated analysis of types of dialogues within or across organisations, provided that it does not compromise the identity of any individual or organisation or use information which is or might reasonably be regarded as commercially sensitive.

4.5 If the Customer or any Authorised Users breach the Terms with WorkInConfidence, we may suspend or terminate the Service(s) with the Customer or individual Authorised Users, provided that we act proportionately.

5. Access to the Service(s)

5.1 Customer is responsible for providing, installing and maintaining at its own expense all equipment and facilities necessary to enable Authorised Users to use the Service(s)

5.2 Where Service(s) require it, WorkInConfidence will issue a user identification to each Authorised User to enable the Authorised User to access the Service(s). Customer will immediately notify WorkInConfidence of any breach of security known to it.

5.3 WorkInConfidence may on reasonable notice temporarily limit use of the Service(s) to make modifications, or do so without advance notice as a result of circumstances beyond WorkInConfidence’s reasonable control.

6. Right to Monitor Use of the Service(s)

WorkInConfidence has the right to monitor use of the Service(s) to ensure compliance with this Agreement. WorkInConfidence will also have the right to analyse Authorised User behaviour to measure use of the Service(s) on an individual and aggregate basis and otherwise to create metadata about use of the Service(s) provided that such metadata is never disclosed to any third party other than in an anonymised and aggregated format.

7. Fees

7.1 Customer will pay WorkInConfidence agreed fees. WorkInConfidence will invoice Customer, and Customer shall pay amounts due within thirty days of the date of invoice. Customer will pay any relevant taxes (such as sales taxes and VAT).

7.2 If the Customer signs up for the Service(s) via online payment, Customer will be charged on the following basis:

the standard fee for the package you sign up for (less any agreed discounts). Any fees for packages paid in advance are not refundable.

if you sign up for an ongoing periodic package (monthly or yearly), we will be entitled to rebill you at the completion of any period for renewal for the next such period unless you cancel your account prior to such time.

if you upgrade your package within a billing period you will be charged the pro rata increase for the remainder of your billing period immediately, and at the new package rate on the commencement of the next billing period.

We do not give refunds on a downgrade but if you downgrade during a billing period your current package will remain available for the remainder of the billing period. At the end of the billing period you will be charged at the new package rate.

if you have given credit card details and are on a periodic plan we are authorised to use that to bill you upon a renewal unless you have cancelled prior to such renewal. If we don’t have a credit card on file, or it is declined or has expired, unless you have cancelled prior to the start of a billing period you will be liable to us for the relevant fees.

We may use a third party billing facilitator such as Chargebee but will take all reasonable care in selecting any such partner.

We reserve the right to change our monthly fees upon a minimum of 30 days’ notice. For clients who have paid in advance any price increase would only be implemented on next renewal.

Ownership

8.1 Customer shall retain all ownership rights to the User Input, but User Input cannot be extracted from the relevant Service unless WorkInConfidence has agreed to make this facility available. Post termination of this Agreement, WorkInConfidence shall within a reasonable time frame delete such information from the relevant Service, without need to consult Customer, unless a run off period for continued access to the Service has been agreed with the Customer. Customer agrees that WorkInConfidence acts as a conduit for the exchange and publication of the User Input. WorkInConfidence will not review or distribute any User Input except as provided herein, or as is apparent from the Service(s) or as required by law.

8.2 If the Customer and/or Authorised Users submit comments or ideas about the Service to WorkInConfidence, the Customer agrees that WorkInConfidence may use them on a non-confidential basis unless they are clearly confidential.

9. Term

9.1 This Agreement will commence as agreed between the parties, or when the Customer accepts these Terms by starting to use the Service(s) and, unless otherwise agreed, will end when terminated by one month’s notice from either party to the other, not to expire before the completion of any fixed term.

9.2 Either party may terminate this Agreement:

if the other commits a material irremediable breach, or where such breach is remediable, fails to remedy such breach within 30 days of notice; or

upon any of the following events:

(i) the other party is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(ii) a petition is filed, a notice is given, or a resolution is passed in connection with the winding up of that other party (being a company);

(iii) a person becomes entitled to appoint a receiver over the assets of the other party;

(vi) an application is made to court, or an order is made, for the appointment of an administrator, over the other party (being a company).

9.3 Upon termination (a) any licence to use the Service(s) will cease; (b) each party will if requested destroy all confidential information of the other they have subject to Clause 8.1; (c) WorkInConfidence will have no further obligation to provide the Service; (d) Customer will pay WorkInConfidence any amounts due.

10. Limitation of Liability

10.1 to the extent permitted by law:

WorkInConfidence assumes no responsibility for any (i) errors of content; (ii) interruption or cessation of the Service(s); (iii) User Input or the defamatory, offensive, or illegal conduct of any third party.

WorkInConfidence its directors, employees or agents shall not be liable for any indirect, special, consequential or exemplary loss or damages, including without limitation damages for loss of income, loss of profits or goodwill arising out of or in connection with use of the Service(s), or otherwise.

10.2 WorkInConfidence, its directors, employees, or agents shall not be liable for any amount exceeding the amount the Customer paid to WorkInConfidence in the 12 months prior to the action giving rise to the liability.

10.3 Nothing in this Agreement shall limit our liability for death or personal injury as a result of our negligence, or that of our directors, employees or agents.

11. Third Party Claims

11.1 If the Software and/or the Service(s) become, or, in WorkInConfidence’s reasonable opinion are likely to become, the subject of a third party infringement claim, WorkInConfidence shall have the right to (i) replace or modify the Service(s) so that they become non-infringing, or (ii) terminate the Service(s) and provide a prorated refund of fees.

11.2 WorkInConfidence will have no liability for any claim to the extent it is based on i) improper use of the Software or Service(s); use of the Software or the Service(s) with any other software which could not be reasonably envisaged by us.

12. Confidentiality

12.1 Each party will use reasonable steps to keep confidential information of the other confidential. For the purposes of this clause “Confidential Information” means information designated as confidential or which would reasonably be considered to be confidential.

12.2 The parties shall not publish or disclose to any third party any Confidential Information, nor use the Confidential Information for any purpose other than to perform its obligations under this Agreement.

12.3 The confidentiality obligations above do not apply to information which:

is already in the public domain;

is published or comes into the public domain by means other than an action or omission on the part of the relevant party;

a party can demonstrate was known to them or subsequently independently developed by them not using or derived from in any way the Confidential Information;

is required to be disclosed by applicable law or court order or regulatory body (the party so required shall promptly notify the other of such request);

12.4 The foregoing confidentiality obligation shall apply during the term and for five years after the expiration of this Agreement.

13. Service Level Agreement

We aim to be available at least 99% of the time, apart from reasonable scheduled maintenance (either outside normal business hours or up to 1 day per quarter). If we exceed this, you are entitled to 7 days free for each day we have been down as long as you request it within 28 days of the outage.

14. Miscellaneous

14.1 This Agreement, and any rights granted hereunder, may not be transferred or assigned by you. We may assign it provided that suitable arrangements are put in place to ensure ongoing delivery of our obligations.

14.2 Notices hereunder shall be in writing and sent to the registered office of the relevant party, or other notified address. Notice shall be deemed received two days after the date of posting.

14.3 This Agreement is governed by English Law and subject to the exclusive jurisdiction of the English Courts.

14.4 This Agreement, together with any other legal notices and agreements published by WorkInConfidence, shall constitute the entire agreement between the Customer and WorkInConfidence.

14.5 Any waiver by either party of a provision hereof shall not be construed as a waiver of any other provision. If any provision of this Agreement is deemed invalid by a competent court it shall not affect the validity of the remaining provisions.

14.6 WorkInConfidence may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting on our website.

14.7 No agency, partnership or joint venture relationship is intended or created by this Agreement.